IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
PUBLIC INTEREST LITIGATION NO. 36 OF 2012
Ashok Maruti Rawoot & Ors. ...Petitioners
V/s.
The State of Maharashtra & Ors. ...Respondents
Mr. K.S. Dewal with Mr. G.V. Limaye and Mr. R.S. Tanna for the
Petitioners
Mr. D.J. Khambatta, Advocate General, with Mr. N.P. Deshpande,
A.G.P., and Mr. Ashish Agarwal, A.G.P., for the State
Mr. Y.S. Jahagirdar, Senior Advocate, with Mr. S.S. Kanetkar,
Mr. G.S. Sawant and Mr. Sagar Talekar for Respondent No. 9
CORAM: A.M. KHANWILKAR AND
A.P. BHANGALE, JJ.
DATE: FEBRUARY 25, 2013 P.C.:
Heard counsel for the parties.
2. This P.I.L., essentially, takes exception to the order passed by respondent No. 5 dated 28th March, 2011, whereunder, the decision of earmarking land, which had vested in gram panchayat, for construction of memorial in the name of Dr. Nanasaheb Dharmadhikari has been assailed.
3. The challenge is, primarily, on the basis of the exposition in Jagpal Singh & Ors. v. State of Punjab & Ors., AIR 2011 S.C. 1123.
The Apex Court, in the said decision, has held that the Government cannot permit allotment of gramsabha land to private persons and commercial enterprises on payment of some money. Further, the Government orders of different State Governments in this behalf have been declared to be illegal and to be ignored in future. The principle stated is that the land vested in gramsabha, which is used as public utility land should not be used for any other purpose, and must be treated as inalienable.
4. There can be no difficulty in following the statement of law expounded in this decision. However, this decision is not an authority on the efficacy of the statutory provision in the Maharashtra Village Panchayats Act, 1958. Section 51(1-A), which deals with lands vested in panchayats, predicates thus:-
"51. Government may vest certain land in Panchayats -(1-A) Whether the State Government is of opinion that any property vested in a panchayat under sub-section (1) is required for the purpose of any national or State development plan or for any other public purpose, or where any such property is not required by the panchayat for the purpose for which it was vested, the State Government may resume such property; and upon such resumption, the property shall cease to vest in the panchayat and shall revest in the State Government."
It is not as if the land vested in panchayats cannot be used for some other permissible activity at all. For, this provision empowers the State Government to resume such land, if the same is required for the purpose of "any national or State Development Plan" or "for any other public purpose", or "where any such property is not required by the panchayat for the purpose for which it was vested". The validity of this provision is not put in issue. So long as this provision operates, the State Government will be within its powers to allot the panchayat land, which has vested in the panchayat as grazing land, for activities specified in Section 51(1-A).
5. The question is: whether the allotment of land, in terms of the impugned order dated 28th March, 2011, is for any one of the purposes and/or activities referred to in Section 51(1-A) of the Act?
The reply-affidavit filed by the State Government, sworn by Ajit Kisanrao Nairale, Tahsildar (Revenue), dated 6 th February, 2013, asserts that the State Government took conscious decision to use the land for setting up memorial in the name of late Dr. Nanasaheb Dharmadhikari; and that, in the perception of the State Government, is a public purpose. Paragraphs 3 to 5 of the reply-affidavit read thus:-
"3. I say that in this particular case, the land in question is required for building a monument of the Late Dr. Nanasaheb Dharmadhikari, who was a great social worker having a huge following. For his social works Maharashtra Government honoured him with the 'Maharashtra Bhushan' Award. The late Dr. Nanasaheb Dharmadhikari worked towards educating villagers / adivasis regarding eradicating dowry, eradication of superstitions, establishing training centres for children in accordance with modern times, adult literacy campaigns, creation of de-addiction centres, institution of family values and family life, blood donation drives, tree plantation, village cleanliness etc.4. I say that the acquired land is being used for perpetuating his memory thereby encouraging the continuation of his work and ideals which is for the public good and which serves a public purpose. It is expected that his ideals and work of social awakening and enlightenment will be invigorated by raising such a monument.5. I say that it has been policy of the State Government to raise statues and monuments of national figures and respected personalities. In this regard, Government in General Administration Department, vide G.R. No. smarak- 3102/884/pra.kra.122/2002/29, dated 02/02/2005 has issued guidelines for raising monuments and statues of such personalities. Erection of statues and memorials of national heroes and great personalities is admissible scheme in District and Planing Development Committee under Tourism and Cultural Department..."
6. It will be useful to refer to the dictum of the Apex Court in the case of Kanaiyalal Maneklal Chinai & Anr. v. State of Gujarat & Ors., 1969(3) SCC 456. In that case, the owners of the land objected to allotment of their land for setting up a Samadhi of Mahatma Gandhi.
According to the owners, that requirement could be considered as public purpose. In paragraph 10 of the decision while rejecting this contention, the Apex Court observed thus:
"10. It was urged that Municipal funds were, contrary to the provisions of the Provincial Municipal Corporations Act, 1949, intended to be utilised for setting up a memorial to Mahatma Gandhi. But we are not concerned in the present case to determine whether if the funds are utilised, they will be lawfully utilised; that is a matter which is not within the periphery of the inquiry in this appeal. The land is being acquired for a purpose which is a public purpose, and once that condition is fulfilled no further inquiry need be made, whether if the municipal funds are to be utilised for setting up a memorial to Mahatma Gandhi, after the land is vested in the State after acquisition, the Municipality will be acting within the limits of its authority. We may observe that a notification issued under Section 6 is by sub-section (3) conclusive evidence that the land is needed for a public purpose."
Applying the ratio expounded in this decision, the argument of the petitioners that the allotment of Panchayat land for setting up memorial of late Dr.Nanasaheb Dharmadhikari cannot be said to be public purpose, will have to be stated to be rejected, keeping in mind the contents of the reply affidavit filed by the State Government reproduced hitherto.
7. It was then contended that the proposed users of the land will be contrary to the provision made in the Development Plan. As per the Development Plan, the user of the land has been shown as "residential". In the first place, this argument militates against the principal argument raised by the counsel for the petitioners that the land vested in the panchayat cannot be used for any other purpose, as is expounded by the Apex Court in Jagpal Singh.
We, however, are not concerned with the question whether, while preparing Development Plan, the Authorities were conscious of the effect of Section 51(1-A) of the Act of 1958 and the permissibility of user of the said land for residential purpose, which is not covered by the activities referred to in sub-section (1-A). Moreover, no material or legal provision has been brought to our notice to show as to how the use of land for setting up a Memorial of this nature can be said to be non-conforming user qua the Development Plan i.e., residential.
8. Be that as it may, the fact remains that the State Government has taken a conscious decision to utilise the land for setting up memorial in the name of late Dr. Nanasaheb Dharmadhikari, who is Vgm. 3612 been revered by the society for his contribution on several social issues and had, therefore, been honoured with Maharashtra Bhushan Award.
The challenge to the impugned order, in our opinion, therefore, cannot be countenanced.
9. The counsel for the petitioners, however, submits that the Government Resolution, on which the respondents have placed reliance, is a policy matter, whereunder, the State Government would honour the demand made by the locals for setting up such memorial, which is contrary to Section 51(1-A) of the Act. We are not concerned with the validity of the Government Resolution dated 2nd February, 2005.
10. The question is: Whether the user of the land for setting up of the memorial of late Dr. Nanasaheb Dharmadhikari can be said to be for public purpose? That position has been stated by the respondents on affidavit, and is also endorsed by the Maharashtra Legislative Assembly, as can be discerned from the Speech of the Finance Minister dated 25 th March, 2010. In paragraph 80 of the extract of the Speech, reference to the setting up of memorial is found, which reads thus:- "Monument of
Late
Nanasaheb
Dharmadhikari
11. The next argument of the petitioners, however, is that the decision to set up memorial of Dr. Nanasaheb Dharmadhikari was conceived at Gram Panchayat Bamangaon, Taluka Alibaug, and not at the present location. That, however, in our opinion, will not make any difference, as the final decision of the State Government is to set up the memorial in the same proximity at Vadhav (Khurd), which is in Taluka Alibaug.
12. The counsel for the petitioners would then contend that Dr. Nanasaheb Dharmadhikari had no links in this region, as he was born and brought up in Revdanda. However, that is a matter of discretion of the Authority and also availability of logistical support, including sufficient and suitable land for setting up the memorial of this magnitude. The decision of the State Government is to set up magnificent memorial in the name of Dr. Nanasaheb Dharmadhikari - who is revered by the entire State for his yeoman's contribution, which is not limited to Revdanda area.
13. Notably, it is indisputable that the gram sabha of Village Vadhav (Khurd) has passed a Resolution giving its no objection for allotting the cattle grazing land of the gram panchayat to the State Government. It is stated on affidavit by the respondents that, as per the policy of the State Government, the village must have 5% of land earmarked for cattle grazing. The number of cattle in the village is stated to be 123, and 5 hectares of cattle-grazing land is, therefore, available in the locality. In other words, the State Government has taken all measures and precautions to ensure that no inconvenience is caused to the farmers in the locality.
14. Taking any view in the matter, therefore, in our opinion, this P.I.L. is devoid of merits.
15. We may place on record the argument of the learned Advocate General that the petitioners, in the name of public interest litigation, has selectively chosen to challenge the decision of the State Government to set up memorial of Dr. Nanasaheb Dharmadhikari, Vgm. 3612 whereas, in the proceedings of the same Maharashtra Legislative Assembly, it was decided to set up memorials of similar famous personalities at other places. The petitioners have not offered any explanation in this behalf, except contending that they were unaware of the Assembly proceedings.
16. For the reasons already recorded, the P.I.L. is dismissed.
We refrain from imposing exemplary costs.
(A.P. BHANGALE, J.) (A.M. KHANWILKAR, J.)
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